Reasonable Doubts - May 4, 2010
Abuse - dependent adult
People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th
No error in refusing unanimity instruction where dependent abuse consisted of several incidents that were charged in one count as continuous conduct.
Child molestation - instruction and sufficiency
People v. Tepetitla-Cruz (E046846, 4th Dist, 4/22/10) Cal.App.4th
Disagreeing with People v. Cicero (1984) 157 Cal.App.3d 465, court holds that consent is not a defense to forcible lewd act committed by force. Minor error in giving lesser-included instructions harmless error.
Counsel - concession of guilt - referring to defendant as suspect is not
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Defense counsel's reference in opening statement to presence of "Mr. Redd" in front of market where robbery took place was not a concession that defendant was the individual involved in that incident. Doubtful that reasonable juror would have considered it a concession, and in any event, evidence was overwhelming.
Credits - retroactive application of Penal Code section 4019
People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th
Defendant entitled to retroactive application of Penal Code section 4019 increased conduct credits. Disagrees with People v. Rodriguez (2010) 182 Cal.App.4th 535, 540 (Fifth) and agrees with People v. House (2010) 2010 WL 1408922 (First Dist., Div. One), People v. Landon (2010) 2010 WL 1444011 (First Dist., Div. 2), and People v. Brown (2010) 2010 WL 924421 (Third Dist.).
Death penalty - the usual result
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Issues considered and rejected: admission of victim-impact evidence; prosecutorial misconduct; cross-examination of defense experts; rejection of instructions; general challenges to California death penalty scheme.
Drunk driving - no Pitchess at DMV hearing
Brown v. Valverde (A121575, 1st Dist, 4/23/10) Cal.App.4th
In Department of Motor Vehicles (DMV) administrative per se hearing, driver facing license suspension following arrest for driving under the influence may not seek discovery of confidential peace officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and its statutory codifications.
Fraud - possession of fictitious check
People v. Mathers (C060425, 3d Dist, 4/22/10) Cal.App.4th
Conviction for passing or possessing fictitious check under Penal Code section 476 reversed, as checks possessed by defendant were not fictitious. Checks were drawn on existing bank, signed by defendant, and defendant had an account at the bank, but it was closed.
Identification - Evidence Code section 1238 procedure
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Testimony regarding out of court identification did not violate Penal Code section 1238. Hearsay admissible under Sixth Amendment and Crawford v. California because witness available for cross-examination.
Juveniles - restitution for medical expenses
In re Eric S. (A125758, 1st Dist, 4/23/10) Cal.App.4th
People v. Duong (2010) 180 Cal.App.4th 1533, which held victim restitution ordered against adult offenders under Penal Code section 1202.4 may include amounts billed for medical services provided by a health HMO, even when victim is HMO member not required to pay for those medical services is proper, applies to juvenile offenders. Amount reduced to amount of HMO lien rather than full cost of services.
Lesser includeds - not shown by evidence
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Defendant not entitled to lesser includeds of second degree murder or voluntary manslaughter, as they were not shown by the evidence, even though the prosecutor requested them "to protect the record."
Lineups - untimely request
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Denial of lineup motion made a year after first appearance not abuse of discretion. Evans v. Superior Court (1974) 11 Cal.3d 617 does not require a finding of dilatory tactics. Mere delay is enough.
Misconduct - prosecutorial - comments by DA were not
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Comments about discrepancy between defense counsel's statements and evidence was not denigration of counsel, nor were other comments. Expressed confusion about nature of defense did not shift burden of proof. Saying a witness was a "nice young man who did something very important ... [and] deserves our thanks" did not constitute vouching because they were based upon facts established by the testimony and did not refer to outside evidence. Asking jurors to examine the gun was request to consider evidence presented, not to produce new evidence. Telling jurors that he was afraid "you people will not get it" was not appealing to jurors' passion. Failure to object not excused by futility.
Restitution - IRS penalties and interest
People v. Williams (E048899, 4th Dist, 4/28/10) Cal.App.4th
Error to deny victim restitution for fines and penalties assessed against vic by IRS due to defendant's failure to pay payroll taxes (he embezzled the money).
Search & seizure - arrest by federal officer on "adjancent" state land
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Court interprets Penal Code section 830.8(b) to permit federal officer to detain defendant who was on county-owned property. "... [T]erm 'adjacent' was not intended to restrict the area within which duly authorized federal employees act as peace officers to locations on nonfederal property that are within 'striking' distance of federal property." Term "adjacent" is not vague, distinguishing Kolender v. Lawson (1983) 461 U.S. 352 because "the alleged vagueness is unrelated to the definition of any crime."
Threats - sufficiency of evidence
People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th
Penal Code section 422 (criminal threat) supported by statement, "Tell them I am going to find out where they live and I am going to come out and get them."
Venue - homicides in two counties
People v. Davis (A125490, 1st Dist, 4/30/10) Cal.App.4th
Penal Code section 790(b), which allows two or more murders committed in different counties to be tried together as longs as they were connected together in their commission, is not limited to serial killers, and thus mother could be prosecuted in one county for killings of her children in that county and another.
Victim-impact evidence - at guilt phase - not
People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th
Asking witness about lasting health problems from shooting did not improperly introduce victim-impact evidence into guilt phase. It was relevant to GBI allegation. Testimony regarding seeing a psychiatrist was inadmissible but harmless.
